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The Sext Files: Can young people consent to explicit videos?

In the Macedon Ranges, the local response to young people sexting as been to seek clarity and education, writes Swinburne University student Sandra Di Francesco.

An alliance representing local police, councils, schools and health bodies has called on the Victorian Parliament to create new categories of s-xting offences to recognise the difference between consensual and non-consensual behaviour.

The Macedon Ranges Local Safety Committee, representing several service groups in the region northwest of Melbourne, says laws need to be changed to avoid “confusion about the appropriateness, legality and prevention of s-xting.” The group says the laws should mirror those for other types of s-xual behaviour, so that there is greater recognition that s-xting can occur voluntarily. The submission says it is “particularly problematic” that the term s-xting is used to describe “both the consensual s-x act as well as the s-xual violation.” It makes the point that “there is no other s-x act we do this with.”

We have different words for both ‘s-x’ and ‘rape’ although they involve the same physical activity,” the submission says.

The committee’s recommendations are partly based on two complex 2009 cases, involving an explicit video of a 15-year-old girl that was shared among several boys.

The case involved both consensual and non-consensual behaviour. For example, the girl shot the video herself and sent it to another boy. But another boy later stole her camera and re-sent the image to others.  One of the boys pleaded guilty on a child p-rnography charge. Others were cautioned.

The girl featured in the first case later produced a second explicit video of herself and sent it to a boy at his request, who then sent it to other boys without her consent.

These cases demonstrate that s-xting is often complex. The Macedon Safety Committee has urged the Parliamentary Inquiry into s-xting to recognise that creating, sending, sharing and posting s-xually explicit material can be either consensual or not.

The submission states: “The action may not have an intent that is offensive, malicious menacing abusive or exploitative.”

The committee believes this distinction would help to “clarify that the problem with ‘s-xting’ is not the act itself, but the unconsenting act.”

But the committee also stressed that some behaviour should be recognised as non-consensual, including using images for other purposes, refusing to delete the image when asked or taking photos of people under the age of consent.

The Macedon Ranges group has been very active in understanding and dealing with the issue of s-xting. It claims there have been approximately ten other cases in the local area, since 2009.

Kyneton Senior Constable Joe Grbac told Crikey: “S-xting was not merely a young person’s game. Adults were indulging in it. Stupidity doesn’t have boundaries,” he added.

Constable Grbac said, “Once consent is withdrawn then it’s an offence.”

The principal of the local Braemar College, Russell Deer, told Crikey two new iPad apps (Snapchat and Peek) promote s-xting. He claimed the makers and users were inviting nothing but trouble. “I find this a bit sinister,” he said.

The committee also argues that a review of existing legislation affecting s-xting is needed as children are being charged under child p-rnograph provisions.

Constable Grbac said, “Current legislation is a problem as the only offences that exist for s-xting are paedophilia and child p-rnography.”

The Macedon Ranges incident inspired local school programs designed to discourage teenagers from s-xting. Deer said these annual programs work. Students were now more aware of the implications.

But Constable Grbac argued told Crikey that, although such programs had their place, a one-off series of lessons was no substitute for a holistic approach involving the entire community.

He compared it with the anti-smoking Quit campaign, saying “It should be a whole-of-community response.”

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